Municipal mess

Practice area:

Recently, I blogged on a Law Court decision reflecting the predicament that arises with ordinances with appellate, not de novo, ZBA review of CEO decisions. See Appletree, or CEO, J.D.? I’m now updating the chapter on civil appeals in A Practical Guide to Superior Court Practice in Maine (MCLE 2015), a process that involves reviewing all the Law Court’s published 80B and 80C decisions from 2015-2017. That exercise underscores (a) what an unholy mess things are; and (b) the Court’s multiple, as-yet unheeded pleas for action.

To trace the Court’s mounting frustration, see CJ Saufley’s concurrence in Beckford v. Clifton, 2014 ME 156; then footnote 2 in The Withram Family Limited Partnership v. Town of Bar Harbor, 2015 ME 12; then note 1 in Hartwell v. Town of Ogunquit, 2015 ME 51; then Justice Gorman’s description of the incomprehensible ordinance the Court wrestled with in Desfosses v. City of Saco, 2015 ME 151. That’s just 2014-2015. It hasn’t gotten any better.

The problems referenced in these and other Law Court decisions include identifying whether a municipal decision is reviewable at all; if so, when it’s final and which is the right ruling to appeal; how long you have to file the appeal; whether there is an intermediate administrative review first; if so, by what body, using what standard; and at the end of running this administrative gauntlet, making sure you having a reviewable record for the next, judicial stage of review.

When you file a Rule 80B complaint, the Superior Court always goes through the drill of identifying whether the ZBA engaged in the proper review, appellate or de novo. If it’s appellate, you not only have the record problem noted in Appletree, but a plethora of other issues, such as what happens if there is a prejudicial procedural problem before the ZBA. If the ZBA engaged in an appellate review, the Court ignores the ZBA decision substantively and reviews the first administrative decision, but the SJC has left open the question of whether that due process violation matters. Fitanides v. City of Saco, 2015 ME 32, n.5. Also, it sounds like a jurisdictional problem if the ZBA looks at something de novo when the Ordinance only gives it the power for appellate review, and vice versa. But the Law Court has ruled that if a party doesn’t raise the standard of review issue at the ZBA level, the issue isn’t preserved for judicial review. Brown v. Town of Starks, 2015 ME 47.

For discussion of other, similar imbroglios, see our blog entries on Bryant v. Town of Camden, 2016 ME 27 (Bryant and the (not so) Final Word); and Campbell v. City of South Portland, 2015 ME 125 (BOA Appellant Beware!). Rule 80C offers its own and analogous issues, e.g. Bailey v. Dept. of Marine Resources, 2015 ME 128 (80Cs and the complicated question of time to appeal — again). A host of due process questions lurk for matters delegated to CEOs and planners without adequate notice and opportunity to be heard for the applicant and abutters. I could go on.

The question is what to do about all this?

In Hartwell, CJ Saufley suggested a model ordinance, citing such a proposal in a 2006 Brookings Institution report. Sadly, this proposal has gone nowhere. And even if people roused themselves to work on such a project, drafting an entire model ordinance and fully vetting it would take another gazillion years.

Nonetheless, there could be targeted legislation to fix at least a chunk of these appellate review problems. An opt-out provision could be included, if towns thought such language at the State level intruded on their home rule authority.

Maybe someone else has some bright ideas. Otherwise, we will just keep muddling through, and your trusty reporter will keep blogging on the various questions and pitfalls as they arise ad hoc before the Court.